STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF THE TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1226

)

HOWARD PAUL HAUSER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 24, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Robert G. Gough, Esquire, (at the

hearing) and Charles Christopher Anderson, Esquire, (on the proposed recommended order) Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

For Respondent: Gary D. Weiner, Esquire

Glendale Federal Building, #209 901 Southeast 17th Street

Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUES

The penalty which should be imposed upon Respondent for his admitted violations of the Florida Insurance Code.

PRELIMINARY STATEMENT

Petitioner charged Respondent, the holder of multiple licenses to sell insurance in the State of Florida, with certain violations of the Florida Insurance Code in a two count administrative complaint. Respondent admitted the material facts underlying the allegations. The formal hearing was held for the purposes of considering circumstances Respondent contended were relevant to and in mitigation of the penalty to be imposed.

At hearing, Petitioner relied upon the Respondent's admissions and upon six documentary exhibits which were accepted into evidence. Respondent testified on his own behalf but called no other witnesses and introduced no documentary evidence.

A transcript of the proceedings was filed. Both Petitioner and Respondent filed proposed recommended orders which contained proposed findings of fact and proposed conclusions of law. The parties' proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding Respondent, HOWARD P. HAUSER, was eligible for licensure and licensed in this state by the Florida Department of Insurance as a Life and Health Insurance Agent; General Lines Insurance Agent

   - Property, Casualty, Surety, and Miscellaneous Lines; and Legal Expense Insurance Agent.

   
   

2. At all times pertinent hereto, Respondent was the registered agent and an officer or director of Hauser and Associates Insurance Agency, Incorporated of 7770 Davie Road Extension, Hollywood, Florida.

   
   

3. Beginning on or about January 1, 1986, and continuing through August 31, 1987, Respondent represented to one of his clients that he had obtained insurance coverage for that client's three restaurants. This representation of coverage was false. Respondent received from the client insurance premium payments of $56,550.00, more or less, for the insurance of the client's three restaurants. These funds were obtained by Respondent under false pretenses.

   
   

4. Respondent provided the mortgagee of one of the restaurants owned by his client with a document purporting to be a certificate of insurance on that restaurant from Scotsdale Insurance Company insuring the restaurant for the period December 11, 1985, to December 11, 1986. Respondent further provided the mortgagee with a declaration sheet stating that Protective Insurance Company would insure the restaurant from January 1, 1987, to January 1, 1990.

   Respondent falsified these declaration sheets.

   
   

5. Respondent's client suffered no loss, other than the loss of his premium dollars, because of Respondent's misrepresentations as to coverage.

   
   

6. Respondent was charged with one count of Grand Theft of the Second Degree, a second degree felony, based on the dealings with his client. Respondent entered a plea of nolo contendere to the charge of Grand Theft of the Second Degree. The Circuit Court, in and for Broward County, Florida, placed Respondent on probation for a period of three years and withheld adjudication of guilt. As a condition of the Order of Probation, the court required that Respondent make restitution to his client in the amount of $56,550.00 and further required that $15,000.00 be paid toward restitution on October 24, 1988, the date Respondent entered his plea of nolo contendere and the date the court entered the Order of Probation. Respondent made a restitution payment of

   $15,000.00 on October 24, 1988.

   
   

7. Respondent has been licensed by Petitioner since April 1972. Although Petitioner has received other complaints about Respondent, no formal action has been previously taken against him.

   
   

8. Respondent has been a good citizen, except for this misconduct, and a good family man. Respondent regrets his misconduct.

   
   

9. Respondent timely requested a formal hearing after the Administrative Complaint was served upon him.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. Section 626.611, Florida Statutes, provides, in pertinent part, as follows:

    
    

    The department shall deny, suspend, revoke, or refuse to renew or continue the

    license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:

    * * *

    (7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

    * * *

    1. Fraudulent or dishonest practices

       in the conduct of business under the license or permit.

    2. Misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license.

    * * *

    (14) Having been found guilty of or

    having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

    
    

12. Respondent's admitted misconduct and the circumstances surrounding the misconduct require that his licenses be suspended or revoked under the above quoted provisions of Section 626.611, Florida Statutes.

    
    

13. Respondent contends that there exist mitigating circumstances which should be considered in determining the penalty to be imposed. Respondent primarily relies upon his 17 years service in the insurance industry without prior discipline by Petitioner to establish his case in mitigation. Respondent further contends mitigation is shown by his having been a good citizen and a good family man. He also argues in mitigation that his client suffered no loss because of the absence of insurance and points to his efforts at restitution to his client. Respondent's 17 years in the insurance industry without being

    formally disciplined and his having been a good citizen and family man are positive factors. The fact that his client suffered no loss because of the absence of insurance is a fortuitous circumstance, but it is not a mitigating circumstance. The efforts Respondent has made toward restitution were required by the terms of his probation and are not considered mitigating circumstances. The positive factors argued by Respondent are insufficient to mitigate the serious misconduct presented by this case.

    
    

14. Respondent's plea of nolo contendere to the felony charge of Grand Theft of the Second Degree and the underlying misconduct in obtaining premium dollars from his client on the basis of false pretenses and then attempting to cover up his misconduct lead to the recommendation that Respondent be given the maximum penalty authorized by Section 626.611, Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Insurance enter a final order which

revokes all licenses issued by the Department of Insurance to Respondent, Howard

Paul Hauser.

DONE and ENTERED this 21st of July, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1989.

APPENDIX

6. Addressed in paragraphs 3-4.

The proposed findings of fact submitted on behalf of Respondent are addressed as follows:

1. Addressed in paragraph 9.

2. Addressed in paragraph 6.

3. Addressed in paragraph 6.

4. Rejected as being unnecessary to the conclusions reached.

5. Addressed in paragraph 7.

6. Addressed in paragraph 5.

7. Addressed in part in paragraph 7. Rejected in part as being speculative.

8. Rejected as being a conclusion of law and not a finding of fact.

COPIES FURNISHED:

Robert G. Gough, Esquire, (at the hearing) and Charles Christopher Anderson, Esquire,

(on the proposed recommended order) Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Gary D. Weiner, Esquire, Glendale Federal Building Suite 209

901 Southeast 17th Street

Fort Lauderdale, Florida 33316

Honorable Tom Gallagher State Treasurer and

Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300

Don Dowdell, General Counsel Department of Insurance and

Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Docket for Case No: 89-001226

Orders for Case No: 89-001226